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Divorce – Counting The Cost

Last week we concentrated our thoughts and articles on Valentine’s Day, preparations for the all-important proposal and the subsequent Wedding plans, and highlighted various points for consideration including ownership of engagement rings, Prenuptial Agreements and the need for new Wills. Today we look at what happens after the love has gone…

From the latest statistics available, sadly 42% of marriages in England and Wales end in divorce, with over 100,000 couples getting divorced in 2017 (the last year for which official statistics are available). The average length of a marriage is 12 years. Whilst 2 in 3 Divorcees remarry, second marriages have a higher chance of ending in Divorce with 59% of those marriages ending in Divorce. Whilst overall our Divorce rate is dropping, this will be of little comfort to those couples facing this difficult period in their relationship.

What can be done to ease the cost, both emotional and financial?

As an alternative to proceeding through the Courts, it is always worth considering whether any of the various types of Alternative Dispute Resolution (“ADR”) might be brought into play. These include:

Mediation

In Mediation, a trained family Mediator will work directly with the couple to explore what solutions they can find to their particular situation. Most family Mediators will cover issues relating to both finance and children. Mediation usually, but not always, takes place with the family Mediator and the couple in one room held over several sessions, though shuttle Mediation is also possible where the circumstances require it. Financial information and disclosure can be provided via the Mediator and financial plans and important arrangements for the children can be reality tested to make sure they will work. Any solutions reached in Mediation need to be encompassed in a Consent Order from the Court in relation to financial matters. The advantage is that the couple remain in control as to the number of sessions they require, the timing of those sessions, the amount of input they require from their Mediator, and, importantly, can consider the solutions that work for them and their family. The other advantage is that it is usually far cheaper and quicker for a couple to work through their issues with a family Mediator than to litigate through the Courts.

Collaborative law

Collaborative law came to the UK from the US and Canada where it has been well established for many years. Many family lawyers have trained as Collaborative Lawyers. In the Collaborative procedure, in contrast to the Mediation procedure, both Parties meet with their own solicitors also being present so that meetings take place with all four participants. The Collaborative Model is based on an agreement that the Parties will not go to Court and will endeavour to resolve their difficulties within the Collaborative process. If one of the Parties decides to bring the Collaborative process to an end, they cannot continue using the lawyers who have been involved in the Collaborative process and must appoint new lawyers. This is a strong incentive to encourage the couple (and their lawyers) to work through any issues that arise in the Collaborative process. The advantage of the Collaborative process, in addition to being quicker and cheaper than traditional Divorce and financial litigation, is that the four way meetings can include invitations to other experts to attend, for example, the family accountant, the Trustees of the family Trust or the Therapeutic Consultant working with the children. Questions are asked directly and the emphasis is on all matters being frankly discussed directly between the participants of that meeting rather than issues getting tangled in aggressive communication between lawyers. Whilst financial information disclosed is open, the discussions in the meetings are privileged and confidential, which allows everyone to talk freely and suggest options and proposals.

As in Mediation, the financial solutions reached have to be embodied in a Consent Order, the advantage being that this can be fast-tracked as the Parties have already agreed the terms.

Arbitration

Arbitration is a relatively recent alternative to proceeding through the Court. It essentially is a form of private Court hearing whereby both Parties agree to appoint a Family Arbitrator to determine a dispute. Whilst the Arbitrator will charge a fee, the process is often positively viewed. The Arbitrator is chosen by the Parties and can deal with both children and finance issues. A decision can often be made quickly compared with the Court and the Arbitrator has the luxury of time to have read the papers and give a reasoned decision. The Arbitrator’s decision is final (appeal being allowed only in limited circumstances) and will be recorded in a Consent Order to be approved by the Court.

Even more recent is the introduction of the Early Neutral Evaluation at which a Judge, retired Judge or Queen’s Counsel hears each Party’s submissions and gives an early indication view as to the likely outcome at Court. This can be helpful if the Parties’ negotiations have become “stuck”.

If none of the ADR procedures appeal, the couple can proceed through the Court. The Court also has to be involved in bringing the marriage to an end by one of the Parties issuing a Divorce Petition, which currently has to be based on the ground that the marriage has “irretrievably broken down”, but evidenced by one of the five facts including:

the other party’s adultery;

the other party’s unreasonable behaviour;

two years’ separation with both parties consenting;

five years’ separation (irrespective of consent);

desertion

It should be noted, however, that same-sex couples are unable to rely on the fact of the other party’s adultery because, under English law, adultery is committed between two people of the opposite sex.

For many years, family lawyers and others involved in working with families have lobbied for an end to the need to prove “fault” on the part of one of the Parties. This need to find fault can introduce or indeed increase conflict. “No fault divorce” has support from politicians across the political spectrum, senior members of the Judiciary and professionals working within the system. The ‘Divorce, Dissolution and Separation Bill’ to introduce no fault divorce was the victim of delays and side-tracked by the Brexit discussions. The Bill has now made its way through Parliament, having had its second reading in the House of Lords on 5 February. It will now move on to the Committee Stage, hopefully on or around 3 March. It is still not known when the Bill will finally be passed and then receive the Royal Assent.

Whilst it is hoped the Bill will remove the need to blame the other spouse, there has, however, been concern that it seeks to introduce a minimum time frame of six months (and therefore extending the time) to complete the Divorce process to allow for reflection, which, for some couples in particularly difficult relationships will just prolong the agony.

Whilst a number of individuals seek to follow a “DIY divorce”, particularly now using the ‘online system’, it is imperative for the couple to appreciate that only when the Court approves a Financial Order does it finally bring their financial relationship to a conclusion. Previous cases have shown that in the absence of such an Order the Court will allow a Party to bring a claim even decades after a Divorce, when perhaps one Party is far more financially successful than they were at the time of the split.

The Government estimate that the cost to the tax payer from family breakdown exceeds £51 billion, let alone the more important cost to the well-being of the couples and their children, so whatever steps can be taken to provide alternative means of resolving disputes that are quicker, better and fairer for families must be adopted wherever possible.

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